Pendleton et al. v. Franklin et al.

Pendleton et al. v. Franklin et al. Attachment against vessels. The charterer of a vessel, who is designated as master, has power to contract a debt for materials, which will be a lien, under the statute (2 R. S. 492). In such case, it is sufficient, in ah application for an attachment, to aver that the debt was contracted by him, as “ master, owner or agent.” A steamboat, enrolled and licensed as a coasting vessel, is within the act j she is liable to be attached for a debt contracted in fitting her up for a floating theatre. Eranklin v. Pendleton, 3 Sandf, 572, affirmed. Appeal from the general term of the Superior Court of the city of New York, where a judgment had been rendered upon a verdict in favor of the plaintiffs. (Reported below, 3 Sandf. 572.) This was an action of debt upon a bond given by the defendants, to discharge the steamboat Virginia from an attachment for a debt contracted by her master, for work and materials. The suit was brought in the supreme court, and on a trial before Edmonds, J., there was a verdict for the plaintiffs; and a case having been made for the opinion of the court, it was transferred to the superior court, under the act of - 1849, to be there determined. *It appeared on the -trial, that the Virginia was a steamboat of 340 tons burden, built at [ *509 Baltimore in 1837; she was enrolled in the New York custom-house on the 23d April 1845. On the 9th January 1845, whilst she was lying in the harbor of New York, the defendants, her owners, chartered her to Erastus Driggs, Adolphus Sutherland and James M. Boulard, for the term of three years, to be used as a floating theatre; the charterers to make all the necessary alterations and repairs, so that the mechanics employed should acquire no lien upon the vessel. Driggs immediately took possession, and had charge and control, and was called her captain, from that time, until the plaintiffs’ debts were contracted, although he was not elected master, by the other charterers, until the 5th March thereafter. About the 14th January 1845, Driggs commenced making repairs and alterations upon the boat, in order to fit her up as a theatre, and for that purpose, purchased various materials of the plaintiffs, some of which might have been used in preparing theatrical fixtures; the materials were charged to the “ Steamboat Virginia and others.” As a floating theatre, she was designated the “ Temple of the Muses.” On the 1st May 1845, the plaintiff, Franklin, applied to Judge Edmonds for a warrant of attachment against the vessel, for one of the debts so contracted. The application set forth that there was “ due unto him $418.75, upon a debt contracted by E. S. Driggs, master, owner or agent, of the steamboat or vessel, called the Virginia, now at the port of New York within this state, for materials furnished to said steamboat, at the port of New York, within this state,” referring to an account of the items of the debt annexed. This was verified by himself and by an affidavit of Henry C, Franklin, in which the same language was employed in relation to the existence and manner of contracting the debt. The defendants took a number of exceptions on the trial, the following-of which raised the questions determined on this appeal. *1. They insisted that the application for the -* warrant to attach the steamboat was insufficient to confer jurisdiction, for the reasons: 1. That it sets forth the debt to have been contracted by E. O. Driggs, master, owner or agent, &c., without specifying which: 2. That it sets forth the items composing the debt to be materials furnished to the steamboat, while the statutory lien is “ on account of any work done or materials furnished for or towards the building, fitting, furnishing or equipping such vessel” or “for provisions and stores” for its use: 3. The affidavit was defective in not stating “the facts and circumstances” to establish the demand, and that the bond was therefore void. II. That the steamboat Virginia was not a ship or vessel, within the meaning of the statute. III. They objected to the charge of the court, that whether or not the articles furnished by the plaintiffs were ordered for the Virginia, by the master or agent, and were such articles as are used in repairing, fitting, furnishing and equipping vessels, were questions of fact for the jury, and if they were of that character, and were so ordered and delivered, the plaintiffs were not responsible for the misapplication of them by the defendants to other purposes; and that it was for the jury to say, from the testimony, whether Driggs was master or agent of the vessel. There was a verdict for the plaintiffs; and the cause having been subsequently transferred to the superior court, and judgment there rendered upon the verdict, on a case made, the defendants took this appeal. Blunt, for the appellants. Benedict, for the respondents. [MAJORITY — Gardiner, J.] Gardiner, J. The defendant insisted, that the application by the plaintiff before Judge Edmonds was not sufficient to confer jurisdiction; first, because it set forth the debt to have been contracted by E. C. Driggs, master, owner or agent, without specifying the articles. The 3d section of the statute “for the collection of demands against ships and vessels” provides, that an application may be made by any person having a debt or demand specified in the first section, to any officer, &c., for a warrant. The 4th section declares that such application shall be in writing and shall specify: 1. By whom such debt was contracted: 2. The items composing such debt. # *The petition in this case states positively the J amount of the debt, and that the same was contracted by E. S. Driggs; the person by whom the debt was contracted is designated, and the vessel on account of which the demand was created. The relation in which the contractor stood to the vessel is stated as that of owner, master or agent, either of which would authorize him to bind the vessel by a debt contracted on her behalf and for her use. Driggs might have acted in all these capacities; he might have been part-owner, master in fact, and agent for the other proprietors; and it seems to me, that the creditor is not bound, at his peril, to determine in which character he acted. The credit, in those cases is, in truth, given to the vessel, and it may be difficult, if not impossible, for the creditor to ascertain the particular relation in which the person having the control stands to the vessel for which he obtains supplies or materials. In this case, Pendleton sues the general owners. Driggs and others had chartered the steamboat for three years; Driggs had charge of her, and was called captain, from the 16th of January, but was not actually elected to that office, until the 10th March 1845, after one-half the debt had been incurred, while the account itself was charged, in the ordinary mode, to " steamboat Virginia and owners.” Supposing the plaintiff to have known all the facts, as it is plain that he did not, it would have been a question of some difficulty for him to have decided, even under legal advice, as to the precise capacity in which Driggs ordered the various articles, at the different times mentioned in the account. In giving, in his petition, the person assuming to contract the debt for the vessel for which the supplies were furnished, and having the authority for that purpose on the part of the contractor, as master, owner or agent, the plaintiff has, I think, sufficiently complied with the statute upon this point, so far as relates to the question of jurisdiction. The case of People v. Recorder of Albany (6 Hill 429) is distinguishable from the present. There, the statute required, that the applicant should give satisfactory evidence to the officer, establishing “that the defendant had some interest in any public *or corporate stock, money or evidence of debt, which he re- L fuses to apply to the payment of the judgment,” &c. It was held, that the creditor must designate the particular species of property on which the charge was founded, if in his power. Even that case, which certainly demands great strictness, does not require that the nature of the debtors’ interest should be established, but only the subject to which that interest appiied. In this case, as we have seen, the vessel, the subject for which the supplies were procured, and the contractor are stated, but the precise character of his agency is omitted, for the above reason that authorized a like omission as to the interest of the debtor in the ease cited. Second. The statute requires the petition to state “ the items composing the debt.” The petition accordingly states that the debt was contracted for materials furnished to the steamboat Virginia, at the port of New York in this state, and that the account annexed contains the items composing said debt; such account is attached, containing in detail the articles and the times when furnished. The word material imports the substance or matter of which anything is made. (Webster.) The proceedings are unobjectionable, therefore, in this respect. Lastly, it was contended, that this was not a ship or vessel within the meaning of the statute. It was held in 5 Hill 35, that the act relates to ships and vessels which are required to have a coasting license under the laws of the United States; and by these laws vessels of twenty tons are to be licensed. (1 U. S. Stat. 305.) This steamboat was built abroad, of 340 tons burden; she was used as a vessel, enrolled, navigated and chartered as such, and recognised as a vessel in the bond given by the defendant, upon which this action is founded. The judgment of the superior court should be affirmed. Judgment affirmed. For the decision of Judge Edmonds, on motion to discharge one of the attachments against the Virginia, see Edm. S. C. 98.